The Fourth Circuit today denied en banc rehearing of the panel decision in March in United States v. Gary. Judge J. Harvie Wilkinson, joined by four of his colleagues, concurred in the denial of rehearing while slamming the panel decision:

I concur in the denial of rehearing en banc for one reason and one reason only. The panel’s holding is so incorrect and on an issue of such importance that I think the Supreme Court should consider it promptly. Any en banc proceedings would only be a detour. Many, many cases await the resolution of this question.

This court’s decision is far-reaching in its implications. It not only creates a circuit split of yawning proportions, but also an equally profound schism with the Supreme Court’s whole approach to error review and remediation. Is it eight—or nine—circuits that disagree with us? I have lost count, but the ranks are growing.

Here’s a quick summary of what’s at issue:

In 2017, Michael Andrew Gary pled guilty to two counts of possession of a firearm by a person previously convicted of a felony. The district court accepted his plea and sentenced him to 84 months on each count (running concurrently).

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Under the Supreme Court’s 2019 ruling in Rehaif v. United States, the government would have had to prove not only that Gary possessed a firearm but also that he knew that he was a felon—that is, that he had “been convicted in any court of … a crime punishable by imprisonment for a term exceeding one year”—when he possessed it. That second element was not part of the governing law in the Fourth Circuit in 2017, so Gary was not informed of it when he pled guilty

Gary obviously knew that he was a felon at the time of his offenses. As Judge Wilkinson recounts, he had previously been “convicted of second-degree burglary and two counts of assault, each punishable by more than one year in prison,” and he had “spend upwards of nine years in prison” for those offenses.

But the Fourth Circuit panel, in an opinion by Chief Judge Roger L. Gregory (joined by Judge Henry F. Floyd and Judge Stephanie D. Thacker), held that Gary “did not knowingly and intelligently plead guilty because he was not fully informed during his plea colloquy of the elements the government had to prove to convict him” and that this error was a “structural error” that is not amenable to “harmless error” analysis.

Judge Wilkinson argues that the Supreme Court has repeatedly “made clear that structural errors are few and far between” and “are to be limited … to the kind of error that by itself invalidates the criminal proceeding.” In his summary, “structural errors are innately infectious, necessarily impugning each part of a trial, rather than potentially consequential, depending on the facts and circumstances of a given case,” and it is for that reason that they “defy analysis by harmless or plain-error review.” “A Rehaif error comes nowhere near this level,” and “the guilty plea context is an especially poor one for recognizing an elements error as structural.” The Rehaif error in this case could not have affected Gary’s “substantial rights because there is no possibility, not to mention a reasonable probability, that Gary would not have pled guilty had he been informed of that which the government could so easily have proven.”

Let’s see if the Supreme Court tees this one up for summary reversal.